Navajo officials tell lawmakers the government should secure reliable water for tribes

Navajo Nation Speaker Crystalyne Curley told a U.S. Senate committee that many Navajo citizens still struggle to find clean drinking water, and joined other officials seeking help to secure reliable supplies.

"I am testifying today on water access and water as a trust resource," Curley told the Senate Committee on Indian Affairs. "The challenges facing the Navajo Nation concerning water access today, are at least as old as our council, predating our council's creation, and coincide with the American presence in Diné Bikeyah."

The hearing was a chance to examine the ongoing challenge of clean water access for tribal communities, said Sen. Brian Schatz, D-Hawaii, the committee's chairperson. It also offered an opportunity to hear testimony not only from Curley but from other tribal leaders, experts and federal partners on how the investments made by the bipartisan Infrastructure Law and Inflation Reduction Act has assisted in these communities.

The laws allocated $3.5 billion for water and sanitation infrastructure to Indian Health Services, and about $2.5 billion to fully fund water rights settlements.

“For too many Native communities the total lack of access to clean and safe drinking water and sanitation facilities is an everyday reality,” Schatz said during the hearing. “Native households are 19 times more likely than non-Native households to lack indoor plumbing, approximately 29% of Native homes need sanitation improvements.”

Curley told the committee about 30% of Navajo Nation homes lack running water, which worsened the effects of COVID-19 on the tribe at the height of the pandemic.

“Ensuring water access is not only the right thing to do, it is the federal government’s trust and treaty responsibility,” said Schatz. “It's our legal obligation not to reserve rights but to live up to our promises and take affirmative steps to secure access to the best of our ability.”

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Navajo Nation finds obstacles to a water settlement

Curley said while the Navajo Nation waits for the IHS funding to be fully deployed, the tribal government is working toward streamlining the environmental clearance process. There are no federal programs to address water access for economic development, she said, leaving water settlements as “the vehicle” to get enough federal funding and authorization to design and construct water projects that will deliver drinkable water and promote economic development.

“The lack of access to water includes more than a domestic water supply,” said Curley. “(It) impedes economic development on the Navajo Nation. Water is needed to support farming, industrial development, and municipal development.”

The Navajo Nation has encountered a series of challenges in securing water claims. That includes a Supreme Court decision that determined the United States has no obligation to the tribe to determine water rights and secure supplies, effectively reversing a previous ruling made by the 9th U.S. Circuit Court of Appeals.

In April, Curley and other Navajo and Hopi leaders testified during Phase I of the General Adjudication of all rights to use water in the Little Colorado River system and source.

The LCR adjudication was initiated in 1978 to determine the extent and priority of the water rights within the watershed. It includes rights of the Hopi Tribe, Navajo Nation, Zuni Pueblo and a small portion of the rights of the White Mountain Apache Tribe.

There are 44 Navajo chapters partially or completely situated within the LCR Basin. The Navajo Nation filed its Statement of Claim in 1985.

“The Navajo Nation is also working very hard to bring parties together within the state of Arizona so we can also bring a settlement of our water rights in Arizona to this Congress,” said Curley. “While ambitious, it is doable.”

She said it is doable because of the desire from outside parties who want to work with the Navajo Nation. She also noted her support for the Tribal Access to Clean Water Bill, which will address operations and maintenance of Indian Health Services constructed facilities.

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White House seeks funding for water rights

The Biden administration “recognizes that long-standing water crises continue to undermine public health and economic development,” said Bryan Newland, assistant secretary of Indian Affairs.

“We strongly support the resolution of Indian water rights claims through negotiated settlements," he said. "These settlements protect the senior water rights reserved by tribal nations and help ensure these nations have reliable and safe water…they also help fulfill trust responsibility to tribes.”

To live up to its trust responsibility, the administration has been negotiating settlements for Indian water rights claims and working with Congress to enact them into law, he said.

“President (Biden) recently submitted a proposal to the Senate and to the House for mandatory funding for over 10 years to fund Indian water rights settlements,” said Newland. “This includes $250 million per year to expand the Indian water right completion fund, which will cover the cost of enacting future water rights settlement, and includes $34 million per year for ongoing costs.”

The Inflation Reduction Act allocated $550 million to the Bureau of Reclamation to address issues related to water access to disadvantaged communities, he said. He noted that more than $25 million from the IRA was invested to install new drinking water infrastructure.

Heather Tanana, initiative lead for Universal Access to Clean Water Tribal Communities Project, said it is unacceptable for Native communities to experience severe water insecurity, especially when tribes have a secured and legally defensible right to obtain water.

She addressed the Supreme Court decision and emphasized that Congress will need to rectify a flawed decision it made when justices voted against the Navajo Nation. While the court acknowledged that the Navajo Nation possesses water rights entrusted to the United States, she said it was surprising that the court concluded that there's no obligation to safeguard those rights.

Government should 'hold up its end of the deal'

The high court's decision shifted the responsibility onto tribes, and some might interpret it as a form of tribal self-governance, Tanana said. But it's important to clarify that true tribal self-determination requires fulfilling the federal trust responsibility as a vital prerequisite. She said Congress should reaffirm its commitment to the trust responsibility, enhance tribal capacity by passing relevant bills and provide assistance in securing tribal water rights.

“Past federal policies sought to destroy and to terminate Native existence; it created the inequalities that we are experiencing today,” she said. "And it's imperative the federal government remedy harms inflicted, but even more so just hold up its end of the deal and honor permanent and healthy homelands.”

But funding to develop water infrastructure only goes so far when tribes lack the workforce, Tanana said, whether to acquire the funding through applying for these grants or to build, design and plan projects.

“That is one of the barriers,” said Tanana. “It’s great, but if tribes can’t access it because they don't have that capacity to apply for these complex grants from multiple federal agencies we are not going to get there.”

Committee member Sen. Ben Ray Lujan, D-New Mexico, said an issue for projects not getting done fast enough is the need for tribes to share costs. He had recently sponsored a bill to wave 50% of the cost share for WaterSMART Water and Energy Efficiency Grants.

“Cost share, lack of support technically, or agencies not working together result in projects not being completed,” said Lujan.

He said numbers he received from Navajo Tribal Utility Authority on how many families don’t have running water, electricity, or broadband is 15,500 Navajo households, which is nearly double the numbers he gets when he asks the same of Indian Health Services. This prompted a question on whether IHS or the Department of Interior has the ability to gather this data.

“There should be data that we can rely on that progress is being made,” said Lujan. “When we are able to work together to pass bipartisan infrastructure packages, as well as to make sure that number drops from 15,500 to 10,500 in a year. Then down to zero at some point.”

Curley said completing water compact agreements is important for tribes to protect water rights, providing environmental stewardship. For the Navajo Nation, compacts are crucial because of historic water shortage, geographical location, and "the need to address water sacristy, infrastructure development and most importantly health disparity."

Arlyssa Becenti covers Indigenous affairs for The Arizona Republic and azcentral.com. Send ideas and tips to arlyssa.becenti@arizonarepublic.com.

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This article originally appeared on Arizona Republic: Navajo officials ask lawmakers to work harder to secure water supplies